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COMMONWEALTH PENNSYLVANIA v. CURTIS THOMAS (06/02/78)

decided: June 2, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
CURTIS THOMAS, APPELLANT (TWO CASES)



Nos. 449, 520 January Term, 1975; Appeal from the Judgments of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, at Nos. 35, 36 and 38 February Term, 1974

COUNSEL

Jack J. Levine, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Carolyn E. Temin, Philadelphia, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, former Chief Justice did not participate in the decision of this case. Pomeroy, J., filed a dissenting opinion in which O'Brien, J., joined.

Author: Manderino

[ 479 Pa. Page 35]

OPINION OF THE COURT

Appellant, Curtis Thomas, was convicted in a jury trial of murder of the first degree, robbery, and criminal conspiracy. Post-verdict motions were denied, and sentence of life imprisonment was imposed. This appeal followed.

[ 479 Pa. Page 36]

Viewing the evidence as we must in a light most favorable to the prosecution, and drawing all reasonable inferences therefrom, Commonwealth v. Kichline, 468 Pa. 265, 361 A.2d 282 (1976); Commonwealth v. Bastone, 466 Pa. 548, 353 A.2d 827 (1976); the record indicates the following. On December 8, 1973, at or about 12:30 p. m., the victim, Alvin Smultkis, an insurance collector, and his supervisor, Donald Hurwitz, were making a collection at a house in Philadelphia. As they were about to leave the building, two young males, one of them later identified as appellant, and the other as Donald Upshur, entered the vestibule of the building and announced a hold-up. Appellant was carrying a gun. As appellant patted down Hurwitz, Mr. Smultkis pushed the gun aside and ran into the street calling for help. Appellant fired the gun at Smultkis but missed, and then passed the weapon to Upshur, who fired the fatal shot. Appellant and Upshur then departed the scene, taking with them Hurwitz's money and wallet.

Appellant and Upshur were members of an organization known as Black Brothers, Inc. (BBI). According to the testimony of two prosecution witnesses, Malcolm McLaughlin and Carlton Smith (also members of BBI), appellant and Upshur arrived at a BBI meeting at approximately four o'clock the same afternoon. Appellant and Upshur announced to those at the meeting that they had taken part in the robbery and shooting of an insurance man. Upshur later passed the murder weapon to McLaughlin, who delivered it to his sister to keep hidden. Acting on information supplied by McLaughlin, the police located the gun two days later. Appellant was arrested on January 3, 1974, and gave two statements to the police admitting his involvement in the crime.

Appellant does not here contest the sufficiency of the evidence. We have, nevertheless, examined the record in accordance with our statutory duty, see the Act of February 15, 1870, P.L. 15, § 2, 19 P.S. § 1187 (1964), and are satisfied that the evidence was sufficient to establish beyond a reasonable doubt, appellant's guilt of murder in the first degree.

[ 479 Pa. Page 37]

Act of December 6, 1972, P.L. 1482, No. 334, § 1 (18 ...


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